10/26/2010

[Guest post by Aaron Worthing; if you have tips, please send them here.]

This is an old post but he recently reprinted much of it in light of the O’Donnell debate, and I figured I would pass it on. He passes on several points about the history of that phrase:

6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.

7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again

I finished reading the brief of the anti-Proposition 8 forces last night, and while I will not bother to refute every point, there were just some things so ridiculous and overwrought, I couldn’t hold my tongue. Don’t believe me? Well, let’s start with this passage, right at the beginning of the brief:

This case tests the proposition whether the gay and lesbian Americans among us should be counted as “persons” under the Fourteenth Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution.

Oh my God, did you hear that? If we don’t give them the right to marry, then we are actually ejecting them from the entire human race!

I mean let’s tease this out a little more. You think I was kidding about abortion? Well, yes, I was, but the joke had a basis in their own hyperbolic claims and taking it to its ultimate conclusion. After all in Roe v. Wade, the court found that a fetus was not a person, and that status as a non-person was vital to finding that there was a right to an abortion. Specifically the Court said:

Holding a steady 7-point lead over a controversial and increasingly malodorous incumbent, Republican Daniel Webster is poised to knock out U.S. Rep. Alan Grayson, a new Sunshine State News Poll shows.

(emphasis added.) Of course the term “malodorous” means bad-smelling, so apparently not only does Grayson smell, but that bad smell is “increasing.” Presumably, then this reporter is not talking literally.

And of course while part of me chuckles at the snark, that’s not appropriate. This is a news article.

On the other hand, I am glad to see the author describe Grayson’s commercials as “highly negative and inaccurate ads that alternately labeled Webster ‘Taliban Dan’ and a ‘draft dodger[.]’” Consider this another example of how the media will actually tell you the facts if they feel they can ascertain them. You know for people who think that the media never figures out what happened for itself.

Update (II): In the comments a few people have been tossing ideas on how to combat fraud. Let me throw in my view, stated a few weeks ago at my own blog:

By the way, what is my solution? I mean I don’t want to eliminate electronic voting machines, but I want them secure.

Okay the real problem here is anonymous voting. Back at the founding everyone voted openly. People think this was abolished because of fears that others would try to bully you into voting one way or the other—especially by employers. The truth is more checkered. The anonymous voting system was first introduced as one of a myriad number of ways black people would be deprived of the vote in the South. It allowed their votes to be thrown out, while frustrating efforts to prove that this had happened. Now while the origins were racist and abusive, it didn’t mean it had to continue for that reason, and concerns about pressure have some validity. So it’s a dilemma. Eliminate anonymous voting and introduce pressure, or keep it and make it easier to fix elections.

But we don’t actually have to choose. With electronic voting and the internet, it is now easy to do this.

First, give each voter a special voter identification number. This is not to be used for anything but voting—I mean pass a law saying no one can ask you what it is, outlawing discrimination based on whether you reveal it or not, etc.

Then they vote and when they do they get a receipt.

Then on each state’s website, they allow you to look up your voter identification number and see what the system says you voted for.

So, its anonymous to the world, but not to you. So then if there is some accusation of funny business, each voter can say, “I am number X, and I voted for Y and Z, but it said I voted for A and B.”

Anyway, that’s my idea, for what it’s worth.

I will add that this approach would interact well with Dustin’s proposed national voter ID card he suggested in the comments.

After the Weekly Standard’s Jay Cost upped his prediction to a GOP gain of 61 House seats last week, Ace posed a series of questions to him on the Twitter:

T or F, @jaycost : When predicting, you (and other analysts) feel much more comfortable getting it wrong on the low side than high side.

Real Q @jaycost If you have a choice between guessing low or guessing high, by same deviation, it feels safer to be on low side, right?

I ask, @jaycost , because ppl like Charlie Cook keep making projections before immediately saying “but it’ll be much higher.”

I don’t think Jay answered. (Indeed, I think Jay has canceled his Twitter account.) Although I cannot speak for Jay, I thought they were good questions, especially because they are a good springboard for looking at the bar of expectations people are setting for Election Day.

In reverse order, Charlie Cook is rather notoriously cautious in his projections, primarily based on the perceived power of incumbency. As the Cook Political Report put it in its October 8, 2010 update:

Longtime readers will observe that while we rarely rate unindicted incumbents worse than a Toss Up to win reelection, today we are moving 13 incumbents, 12 Democrats and one Republican, into the opposite party’s column to reflect their underdog status. It’s not that these endangered members’ prospects have suddenly taken a turn for the worse, or even deteriorated gradually over the last several months. Most of these members have trailed all year, and it’s simply exceedingly rare to see a candidate in their position in October come back to win reelection, especially now that early voting will be underway in many states very soon.

We have historically treated the Toss Up column for incumbents as the political equivalent of the intensive care unit, and haven’t commonly used gradations of danger worse than Toss Up. But we have seen some incumbents that have fallen far enough behind and remain behind for so long that we could no longer justify referring to their races as Toss Ups. Overall, 51 House Democrats have trailed their GOP challengers in at least one public or private poll taken this year, a higher number than we have ever seen before. At this point in 2006, fewer than 20 House Republicans trailed their Democratic opponents…

Cook underestimated the 1994 GOP wave, but his overall record is pretty good, which is probably why he usually stays cautious, and why the ratings he has already made frighten the Dems.

Beyond Cook, the conventional wisdom on the wave may not be as groupthinky as we may think. For example, Jay Cost’s October 15th roundup of prognostications ranged from Stuart Rothenberg’s 37-45 seats (“with considerably larger gains in excess of 45 seats quite possible”) to Alan Abramowitz’s model predicting roughly 68 seats and Steve Lombardo (President and CEO of the Lombardo Consulting Group) predicting a GOP gain of 60-70 House seats. Since then, most of the lower estimates have been revised upwards, as time runs out for any serious changes in the dynamics of the elections. In fact, Jay Cost revised his own estimate from 57 seats to the aforementioned 61 (where he remains today). (Note: Patrick Ishmael slogs through a lot of micro-data and reaches 62-65 new GOP seats.)

Jay was fairly transparent is explaining how he arrived at last week’s estimate. Essentially, he assumed Dem and GOP turnout akin to 2004, but allocated the Independent voters in the proportions we have seen overall in recent public opinion polling. Those assumptions would give the Dems roughly 46% of the two-party vote. What Jay did not say is that Gallup’s generic ballot model suggests that 46% of the two-party vote would project to somewhere between 186-208 seats, with a “best” prediction of 197 seats. That “best” prediction would give the GOP 238 seats, unsurprisingly close to Jay’s estimate of 240 GOP seats. Jay’s estimate is also in the ballpark with the aforemetnioned Abramowitz model, which relies in part on the Gallup likely voter generic ballot question.

Jay’s Oct. 22nd projection is small-c conservative only to the degree that he is assuming that Dems fix most — but not all — of their enthusiasm gap. It is the equivalent of the GOP being +10 on the final pre-election Gallup generic ballot question, when it could be as high as +14 now. But even under the Gallup model and the Abramowitz model, a GOP +14 generic ballot would suggest ~253 GOP seats, only a baker’s dozen more than Jay’s estimate (and almost as many seats as the Dems held in 2008 after two very good cycles for them). Unless Democrats’ enthusiasm collapses, that seems like the most realistic best-case scenario.

If there is some small-c conservatism in not projecting the best-case scenario, I would note — as Jay did — that if the GOP wins 54% of the two-party vote, it will likely exceed its 1994 wave (230 seats) and mark the party’s best showing since 1946. As much as I may hope for the best-case scenario, it would be not only unfair, but also counter-productive to set the bar of expectations there.

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Update: The Cook Political Report’s pre-election House outlook is now a Democratic net loss of 48 to 60 seats, with higher losses possible.

I heard about this a week ago, and honestly I didn’t know what to make of it at first. Here’s the basic rundown. Ken Buck is running to be the Senator representing Colorado as a Republican. In 2005, he was a District Attorney. Back then he refused to prosecute a case where rape was alleged. And since then he has come under scrutiny for that decision. The Huffington Post gave us audio of the tape and while it is hard to hear it, this appears to be a reasonable transcription of what he said:

“It appears to me and it appears to others that you invited him over to have sex with him,” Buck said on the hazy recording, before acknowledging she may have been unconscious at the time. When the victim went on to say she had not consented to sex, woke up only to find herself being violated, and told the man to stop, Buck seemed unmoved.

“[W]hen you describe yourself as “bedfellows,” as you did indicate that you were “bedfellows,” it’s hard to convince a Weld County jury that this wasn’t consensual, when that is your label,” he said. “So there are those kinds of factors. This office doesn’t believe in blaming the victim for the conduct of the case, but we do have to take into account what a Weld County jury sees in the relationship. You had consumed a lot of alcohol. You had a prior relationship … According to him, you were naked from the top up when he came into the bedroom. So, there are enough indicators or indications that, in my opinion, make this impossible to prove beyond a reasonable doubt.”

To me that struck me as unfair, but I wasn’t sure if Buck was being unfair or he was accurately stating an unfair reality. So I let the story cool.

And then I figured it out. All of the media was telling us exactly what they thought. Take for instance, what the Huffington Post said on the subject:

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